Tax International

In: Business and Management

Submitted By guy83
Words 1540
Pages 7
מקרה 5 * בקביעת מועד ניתוק התושבות של יחיד, אזרח ישראל והפיכתו לתושב חוץ לצרכי מס, יש לבחון מספר מבחנים המסייעים בקבלת ההחלטה: 1. מספר הימים בהם שהה היחיד בישראל במהלך התקופה הנבדקת- בשנים 2000-2010 שהה היחיד רוב ימות השנה במדינה הזרה, יותר מ-183 ימים בכל שנת מס.
לפי הדין הפנימי, סעיף 2 לפקודה- "חזקה היא שמרכז חייו של יחיד בשנת המס הוא בישראל (א) "אם שהה בישראל בשנת המס 183 ימים או יותר"- לא מתקיים עבור היחיד ע"פ העובדות. (ב) "אם שהה בישראל בשנת המס 30 ימים או יותר וסך כל תקופת שהייתו בישראל בשנת המס או בשנתיים שקדמו לה הוא 425 ימים או יותר"- לא מתקיים עבור היחיד. 2. קיומו/אי קיומו של בית קבע בישראל- אין בבעלות היחיד בית בישראל. לפי הדין הפנימי, סעיף 1 (א)(1) לפקודה- הגדרת "תושב ישראל" קביעת מרכז חייו של היחיד (פס"ד גונן, סולר, צייגר). 3. הצטרפוץם של בני משפחתו של היחיד אליו- היחיד עזב בשנת 99 את ישראל ועבר להתגורר במדינה הזרה יחד עם אשתו השנייה וילדם- מצביע על ניתוק מישראל במועד עזיבת הארץ. בשנת 2004 אחד מילדיו עבר להתגורר עימו במדינה הזרה. 4. תשלום ביטוח לאומי, מס בריאות וכו..- ע"פ העובדות היחיד לא הוגדר כתושב ישראל לעניין ביטוח לאומי בין השנים 2000-2010 (עד מועד חזרתו ארצה). 5. מבחן הארבע שנתי- הגדרת המונח "תושב חוץ"- מי שאינו תושב ישראל עוברת תיקון (168 לפקודה) ונקבעה תוספת להגדרה:
"תושב חוץ"- מי שאינו תושב ישראל, וכן יחיד שהתקיימו בו כל אלה: * הוא שהה מחוץ לישראל 183 ימים לפחות, בכל שנה, בשנת המס ובשנת המס שלאחריה, * מרכז חייו לא היה בישראל, כאמור בפסקה (א)(1) להגדרה "תושב ישראל" או "תושב", בשתי שנות המס שלאחר שנות המס האמורות בפסקת משנה א.
* ע"פ המבחנים הנ"ל ומכלול העובדות המצויינות לגבי היחיד- ניתן לראות ביחיד תושב חוץ. בנוסף, חוזר רשות המסים קובע: "אם בשנת המס, שבה עזב היחיד את ישראל, הוא שהה מחוץ לישראל מעל 183 ימים הרי שמניין ארבע השנים יחך כאמור לעיל בשנת העזיבה, ואולם יום ניתוק התושבות ייקבע ליום בו עזב את ישרל ולא לתחילת שנת המס בה שהה מחוץ לישראל מעל 183 ימים.
לא ניתן לקבוע את מניין הימים בהם שהה היחיד בחו"ל בנת 99,…...

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